A plaintiff who seeks refund of the advance money is not entitled to the relief of specific performance.

I.A. No.6818/2014 (of defendants u/O 14 R-5 CPC)

1. The plaintiff has instituted this suit for specific performance of an oral Agreement to Sell by the defendants of sale of property No.39, Mandakini Enclave, Alaknanda, New Delhi to the plaintiff for a total sale consideration of Rs.35 lakhs out of which the plaintiff claims to have paid a sum of Rs.5 lakhs as token money (bayana).

2. Since the suit was not accompanied with any application for interim relief, the same was listed before the Joint Registrar and summons of the suit were issued to the defendants who filed written statement thereto and to which a replication was filed by the plaintiff.

3. On the pleadings of the parties, on 22nd February, 2011, the following issues were framed:

“(i) Whether there is a valid and binding agreement to sell dated 15th June, 2006 between the parties? OPP

(ii) If issue no.1 is answered in favour of the plaintiff, then whether the plaintiff was ready, willing and able to perform the agreement to sell dated 15th June, 2006? OPP

(iii) Whether the plaintiff is in breach of the agreement dated 15th June, 2006? OPD

(iv) Whether the plaintiff is entitled to specific performance of an agreement to sell dated 15th June, 2006? OPD

(v) Relief.”

and the suit posted for trial.

4. The counsel for the plaintiff states that the affidavits by way of examination-in-chief of all the witnesses of the plaintiff have been filed, though cross-examination has not commenced as yet.

5. The defendants have filed this application which has come up for the first time today, seeking framing of the following issue:

“Whether the suit for specific performance is maintainable in light of the legal notice dated 5th July, 2006 and rejoinder dated 17th August, 2006 sent by the plaintiff? OPP”

and for the same to be treated as a preliminary issue.

6. The counsel for the plaintiff appears on advance notice.

7. Having gone through the application aforesaid of the defendants and finding that the issue as proposed does arise and goes to the root of the claim of the plaintiff for specific performance, I have enquired from the counsel for the plaintiff as to how, the suit, in the light of the legal notice and the rejoinder aforesaid issued by the plaintiff prior to the institution of the suit, is maintainable.

8. The counsel for the plaintiff has fairly agreed to address arguments on the aspect of maintainability of the suit today itself. The counsels have been heard.

9. The plaintiff, prior to the institution of the suit, issued a legal notice dated 5th July, 2006 to the predecessor in interest of the defendants and has along with the plaint filed an office copy of the same. The said notice was issued by the same counsel who is appearing for the plaintiff today. Since, much turns on the language of the said notice, it is deemed appropriate to set out the same in its entirety herein below:

“Sir,

On behalf and instruction of my client Shri Ashwani Kumar Verma, r/o 39, Mandakini Enclave, Alaknanda, New Delhi, I am sending you the legal notice on following facts :

1. That my client, who is an Executive with M/s Duncan Industries, is your tenant in the above said premises, vide Licence Agreement for rent of Rs.5000/- per month and Hire Agreement rent of Rs.4000/- per month dated April 2002. These agreements expired on 31st March, 2003. However, the same were renewed for a period of three years with the consent of both the parties 19th July, 2003. The same had expired on 31st March, 2006. It is pertinent to mention that three months advance rent and security deposit of Rs.27,000/- is in your possession for both the abovesaid agreements.

2. That you had expressed your desire to sell your flat to my client in April 2006 for Rs.35,00,000/- (Rupees Thirty Five Lakhs only) that you had verbally instructed my client to pay the amount of Rs.5,00,000/- (Rupees Five Lakhs only) as token money (Byana) with immediate effect.

3. That my client was constrained to take personal loa